(1) "Cleric"
means a minister, priest, rabbi, or other similar functionary of a religious
organization or an individual reasonably believed to be so by the person
consulting that individual.

(2) "Confidential
Communication" means a communication:

(A) made
privately; and

(B) not
intended for further disclosure except to other persons in furtherance of the
purpose of the communication.

(b) Statement
of the Privilege. A
person has a privilege to refuse to disclose, and to prevent another from
disclosing, any confidential communication:

(1) made
to a cleric in the cleric's religious capacity; and

(2) necessary
and proper to enable the cleric to discharge the function of the cleric's
office according to the usual course of practice or discipline.

(c) Who
May Claim the Privilege.
The privilege may be claimed by:

(1) the
person who made the confidential communication;

(2) the
person's guardian or conservator;

(3) the
person's personal representative if the person is deceased; and

(4) the
person who was the cleric at the time of the communication on behalf of the
communicant.

2011
Advisory Committee Note. – The
language of this rule has been amended as part of the restyling of the Evidence
Rules to make them more easily understood and to make style and terminology
consistent throughout the rules. These changes are intended to be stylistic
only. There is no intent to change any result in any ruling on evidence
admissibility.

ADVISORY
COMMITTEE NOTE

The considerations
that support evidentiary privileges for confidential communications generally
favor a privilege for confidential communications made to a member of the
clergy, at least to the extent that the communication is entrusted to the
cleric in the cleric's religious capacity. See 8 Wigmore,
Evidence § 2396 at 878. See also Utah Code Ann. § 78-24-8(3).

The Committee
chose the form of the proposed Rule 506 of the Federal Rules of Evidence (never
adopted) for clarity and for consistency with the Committee's proposed Rule
502. See, e.g., 51 F.R.D. 315, 371-73. The Committee
began with the basic concept of the current rule stated in Utah Code Ann. §
78-24-8(3), making changes as discussed below.

(a)
Definitions. Subparagraph (1) defines the term "cleric" to include a
"minister, priest, rabbi, or other similar functionary of a religious
organization." The non-denominational and gender neutral term
"cleric" replaces the terms "priest" and
"clergyman" traditionally used in statements of the privilege, but embraces
the same concept. Subparagraph (1) expands the scope of the concept, however,
by including as a cleric "an individual reasonably believed so to be by
the person consulting that individual."

(b) General
rule of privilege. The scope of the proposed privilege falls between a
privilege narrowly restricted to doctrinally required confessions and a
privilege broadly applicable to all confidential communications with a cleric.
The privilege includes confessions, but also applies to all confidential
communications to the cleric that are (1) "in the cleric's religious
capacity" and (2) "necessary and proper for the cleric's office
according to the usual course of practice or discipline." The privilege
does not extend to confidential communications with a cleric when the cleric is
acting in any capacity other than the religious capacity.

The term
"in the cleric's religious capacity" was chosen over "in the
cleric's professional character" to avoid an implication that only
communications with professional members of the clergy are protected. The
privilege applies to confidential communications with lay clerics as well.

The language
"necessary and proper for the cleric to discharge the functions of the
cleric's office according to the usual course of practice or discipline"
replaces "in the course of discipline enjoined by the church to which he
belongs" in order to extend the privilege beyond doctrinally required confessions.
For similar language, see Iowa Code Ann. 1950 Section 622.10. See also, State
v. Burkett, 357 N.W.2d 632 (Iowa 1984) for an application of the Iowa statute.

(c) Who may
claim the privilege. The person who makes the confidential communication holds
the privilege, but the rule provides that others may claim the privilege for
that person in certain circumstances. A cleric is presumed to have authority to
claim the privilege for the communicant, though the presumption may be overcome
by a preponderance of evidence to the contrary. See Rule of Evidence 301 (a).

Under the
privilege as phrased, the person making the confidential communication is
entitled not only to refuse to disclose the communication, but also to prevent
the disclosure by the cleric or others who, by presence in furtherance of the
religious purpose or by overhearing without the knowledge of the person making
the communication, may know the content of the communication. Problems of
waiver are dealt with by Rule 507.

The Committee
felt that exceptions to the privilege should be specifically enumerated, and
further endorsed the concept that in the area of exceptions, the rule should
simply state that no privilege existed, rather than expressing the exception in
terms of a "waiver" of the privilege. The Committee wanted to avoid
any possible clashes with the common law concepts of "waiver."